I haven’t yet addressed one error that Judge Carnes made yesterday. Carnes claimed that the disclaimer sticker accurately reflected the opinion of the textbook author, Ken Miller, that evolution is a theory and not a fact. (I believe that this was part of the defense’s argument.)

“I don’t think you all can contest any of the sentences” on the disclaimer sticker, Judge Ed Carnes of the 11th U.S. Circuit Court of Appeals told an attorney arguing for parents who sued.

Judge Ed Carnes of the U.S. 11th Circuit Court of Appeals said that the lower court judge had misstated facts in his ruling, overstating the influence religious protests had on the school board’s actions. He also said the words on the sticker are “technically accurate,” and that the Cobb County school board was justified in singling out the theory of evolution for comment.

“From nonlife to life is the greatest gap in scientific theory,” Carnes said. “There is less evidence supporting it than there is for other theories. It sounds to me like evolution is more vulnerable and deserves more critical thinking” than other subjects.

Q. [By Mr. Manely] Does your text teach that evolution is a theory and not a fact?

A. [Dr. Ken Miller] That’s a difficult question to answer, and the reason for that has to do not with our textbook but with the use of language. In English we often use the word “evolution” to mean two entirely different things. The first way in which we mean it is to describe what happened in the past. The scientific community really is of one mind that evolution took place, that we are descended with modifications from earlier organisms and so is everything else on this planet. This is supported by a host of facts, including the fossil record, including biogeography, and even our own genetics and our own physiology. So the notion that this descent with modification took place, namely that life in the past was different from life in the present and that the life of the past evolved or changed into the life of the present, that’s as much of a fact as anything else we know in science.

How this took place, that’s the respect in which evolution is also a theory. So when we speak of evolutionary theory, what we’re talking about are the mechanisms that drove this change. And there’s considerable – there’s considerable disagreement and considerable scientific work as to the relative merits of geographical isolation, what’s known as ecological isolation, sexual selection, natural selection, physiological selection, and so forth. So in a way it would be really nice if we could invent two distinct words so that we could make clear when we’re talking about evolution, namely the facts of natural history, and evolution, the process. But in that respect it’s quite proper, as we do in our book, to speak of evolutionary theory, talking about the mechanisms of change and the relative importance of various elements of it, and also the fact of evolutionary change.

THE COURT [Judge Cooper]: So evolution is both, then, fact and theory?

THE WITNESS: I think it is fair to say that evolution is certainly a theory, but it is also a fact, in that it is a fact of natural history that evolution took place.

THE COURT: Thank you.

So while Judge Carnes criticized the opinion of Judge Cooper for concluding that the disclaimer was inaccurate, Cooper’s opinion is clearly based on the testimony that he heard and that the appeals court has (apparently) yet to read.